How to exercise Judicial Discretion under Section 231 (2) of the Cr.P.C. by a Judge [SC JUDGMENT]

Code of Criminal Procedure, 1973 – Section 231 - Evidence for Prosecution
- Whether the exercise of discretion under Section 231(2) of the Cr.P.C. by the
Additional Sessions Judge was valid and legally sustainable.

The norm in any criminal trial is for
the examinationinchief of witnesses to be carried out first, followed by
crossexamination, and reexamination if required, in accordance with Section 138
of the Indian Evidence Act, 1872. Section 231(2) of the Cr.P.C., however,
confers a discretion on the Judge to defer the crossexamination of any witness
until any other witness or witnesses have been examined, or recall any witness
for further crossexamination, in appropriate cases. Judicial discretion has to
be exercised in consonance with the statutory framework and context while being
aware of reasonably foreseeable consequences.5 The party seeking deferral under
Section 231(2) of the Cr.P.C. must give sufficient reasons to invoke the
exercise of discretion by the Judge, and deferral cannot be asserted as a matter
of right. [Para 7]

Code of Criminal Procedure, 1973 – Section 231 (2) – The Judge
may, in his discretion, permit the crossexamination of any witness to be
deferred until any other witness or witnesses have been examined.

There cannot be a straitjacket formula
providing for the grounds on which judicial discretion under Section 231(2) of
the Cr.P.C. can be exercised. The exercise of discretion has to take place on a
casetocase basis. The guiding principle for a Judge under Section 231(2) of the
Cr.P.C. is to ascertain whether prejudice would be caused to the party seeking
deferral, if the application is dismissed. While deciding an Application under
Section 231(2) of the Cr.P.C., a balance must be struck between the rights of
the accused, and the prerogative of the prosecution to lead evidence. [Para
10 & 11]

Code of Criminal Procedure, 1973 – Section 231 (2) – While
deciding an Application under Section 231(2) of the Cr.P.C., a balance must be
struck between the rights of the accused, and the prerogative of the
prosecution to lead evidence.

The following factors must be kept in consideration:

• Possibility of undue influence on
witness(es);

• Possibility of threats to
witness(es);

• Possibility that nondeferral would
enable subsequent witnesses giving evidence on similar facts to tailor their
testimony to circumvent the defence strategy;

• Possibility of loss of memory of the
witness(es) whose examinationinchief has been completed;

• Occurrence of delay in the trial,
and the nonavailability of witnesses, if deferral is allowed, in view of
Section 309(1) of the Cr.P.C.

These factors are illustrative for
guiding the exercise of discretion by a Judge under Section 231(2) of the
Cr.P.C.

The following practice guidelines should be followed by trial
courts in the conduct of a criminal trial, as far as possible:

1. A detailed casecalendar must be
prepared at the commencement of the trial after framing of charges;

2. The casecalendar must specify the
dates on which the examinationinchief and crossexamination (if required) of
witnesses is to be conducted;

3. The casecalendar must keep in view
the proposed order of production of witnesses by parties, expected time
required for examination of witnesses, availability of witnesses at the
relevant time, and convenience of both the prosecution as well as the defence,
as far as possible;

4. Testimony of witnesses deposing on
the same subjectmatter must be proximately scheduled;

5. The request for deferral under
Section 231(2) of the Cr.P.C. must be preferably made before the preparation of
the casecalendar;

6. The grant for request of deferral
must be premised on sufficient reasons justifying the deferral of
crossexamination of each witness, or set of witnesses;

7. While granting a request for deferral
of crossexamination of any witness, the trial courts must specify a proximate
date for the crossexamination of that witness, after the examinationinchief of
such witness(es) as has been prayed for;

8. The casecalendar, prepared in
accordance with the above guidelines, must be followed strictly, unless
departure from the same becomes absolutely necessary;

9. In cases where trial courts have
granted a request for deferral, necessary steps must be taken to safeguard
witnesses from being subjected to undue influence, harassment or intimidation.

Facts of the Case

In the present case, a bald assertion
was made by the Counsel for the Accused that the defence of the Accused would
be prejudiced if the crossexamination of CWs 1 to 5 is not deferred until after
the examination-in-chief of CWs 2 to 5. The impugned Order is liable to be set
aside since the High Court has given no reasons for reversal of the Order of
the Additional Sessions Judge, particularly in light of the possibility of
undue influence and intimidation of witness(es) since the Accused are “highly
influential political leaders”.

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

(ABHAY MANOHAR SAPRE) AND (INDU MALHOTRA) JJ.

October 30, 2018

CRIMINAL APPEAL NO. 1321 OF 2018

[Arising out of Special Leave Petition (Crl.) No. 4652 of 2018]

State of Kerala …Appellant

Versus

Rasheed …Respondent

J U D G M E N T

INDU MALHOTRA, J .

Leave granted.

1. The present Criminal
Appeal arises out of Special Leave Petition (Crl.) No. 4652 of 2018 wherein the
impugned Order dated January 9, 2018 passed by the High Court of Kerala in
Criminal Miscellaneous Case No. 171 of 2018 has been challenged.

2. The relevant facts for
deciding the present Criminal Appeal, are briefly set out below:

2.1. A First Information Report under Section 154 of the Code of
Criminal Procedure, 1973 (“Cr.P.C.”) was registered at theinstance of CW 1Narayanan. According to
the Original Statement provided by him to the Police, Krishnaprasad, who was
the occupant of a flat in the building where CW 1Narayanan was serving as a
security guard, had called for an ambulance. Krishnaprasad, along with others,
then carried an unconscious person out of the bathroom of the flat to the
ambulance. The unconscious person was later identified to be Satheesan, who was
declared dead on being taken to the hospital. CW 1Narayanan then made a
statement that Krishnaprasad had been staying in the flat for two months, and
was a companion of the RespondentAccused No. 2, Rasheed. It was alleged that
the flat had been taken on rent by the RespondentAccused No. 2.

2.2. On May 24, 2016, the Police filed a ChargeSheet under
Section 173 of the Cr.P.C. before the Judicial First Class Magistrate Court II,
Thrissur against 8 persons, including the RespondentAccused No. 2, for the
alleged commission of offences under Sections 302, 343, 212, 201, 202, 118 and
109 read with Sections 120B and 34 of the Indian Penal Code, 1860. It was
alleged that the deceasedSatheesan had disclosed information to his girlfriend,
CW 5Ajitha, regarding the activities which had been taking place inside the
rented flat, and about the illicit relationship between the RespondentAccused
No. 2 and Accused No. 3Saswathy. On learning about this, the Accused persons
had allegedly detained Satheesan, tortured him, and killed him with criminal
intention.

2.3. Charges were framed by the Additional Sessions Judge,
Thrissur. CWs 1 to 5 were summoned as Prosecution Witnesses on December 16,
2017.

On the same day, after the examinationinchief of CW 1Narayanan
was conducted, an Application under Section 231(2) of the Cr.P.C. was filed by
the Counsel for the RespondentAccused No. 2 seeking adjournment of the
crossexamination of CW 1Narayanan, as also of CWs 2 to 5, to a date after the
examinationinchief of CWs 2 to 5 was completed. It was stated in the said
Application, that the case of the RespondentAccused No. 2 would be adversely
affected if the Application was not allowed, since the defence strategy adopted
by the RespondentAccused No. 2 would be revealed to the Prosecution.

2.4. The Application under Section 231(2) of the Cr.P.C. was
opposed by the Prosecution which filed a Reply, wherein it was stated that CWs
1 to 5 were not deposing with respect to the same subjectmatter. It was further
stated that the deferral of the crossexamination would adversely affect the
Prosecution evidence.

2.5. The Additional Sessions Judge vide Order dated December 20,
2017 dismissed the Application filed on behalf of the RespondentAccused No.
2.The Additional Sessions Judge held that Section 231(2) of the Cr.P.C. confers
a discretion on the Trial Judge to defer the crossexamination of any witness
until any other witness or witnesses have been examined. Section 231(2) of the
Cr.P.C. does not confer a right on the accused to seek deferral in a wholesale
way on the ground that the defence of the accused would become known to the
Prosecution. The deferral of crossexamination, in the present case, would run
counter to the general provisions of the Indian Evidence Act, 1872.

The Additional Sessions Judge held that the deferral of
crossexamination in this case could give rise to the possibility of loss of
memory on the part of the witnesses, who had already been examinedinchief,
which would adversely affect the case of the Prosecution.

The Additional Sessions Judge also observed that no specific
reason for deferring the crossexamination had been pleaded on behalf of the
RespondentAccused No. 2, apart from a general averment that the defence would be
disclosed to the Prosecution.

The Additional Sessions Judge was of the view that the
RespondentAccused No. 2 and Accused No. 7 are “highly influential
political leaders”,
and the possibility of the threats to witnesses after their examinationinchief,
could not be ruled out.Furthermore, it was observed that CWs 1 to 5 would be
deposing on different facts and aspects of the case.

The Additional Sessions Judge keeping in view the provisions of
Sections 231(2) and 309 of the Cr.P.C. held that deferral of crossexamination
is not an ordinary practice in a criminal trial, and dismissed the Application
filed on behalf of the RespondentAccused No. 2.

2.6. Aggrieved by the Order dated December 20, 2017 passed by
the Additional Sessions Judge, the RespondentAccused No. 2 filed Criminal
Miscellaneous Case No. 171 of 2018 under Section 482 of the Cr.P.C. before the
High Court of Kerala.

The High Court reversed the Order of the Additional Sessions
Judge by a short unreasoned cryptic Order dated January 1, 2018, and allowed
Criminal Miscellaneous Case No. 171 of 2018. It was directed that the
crossexamination of CWs 1 to 4 be adjourned till after the examinationinchief
of CW 5.

2.7. Aggrieved by the Order dated January 1, 2018 passed by the
High Court, the State of Kerala has filed the present Special Leave Petition
(Crl.) No. 4652 of 2018 before this Court.

3. The legal issue which
arises for consideration in the present Criminal Appeal is whether the exercise
of discretion under Section 231(2) of theCr.P.C. by the Additional Sessions
Judge was valid and legally sustainable.

4. The statutory framework
governing the order of production and examination of witnesses is contained inter alia in Sections 135 and 138 of
the Indian Evidence Act, 1872. A conjoint reading of Sections 1351 and 1382 would indicate that the
usual practice in any trial, be it civil or criminal, is for the
examinationinchief of a witness to be carried out first; followed by his
crossexamination (if so desired by the adverse party), and then reexamination
(if so desired by the party calling the witness).

1 “135. Order of
production and examination of witnesses.–The order in which
witnesses are produced and examined shall be regulated by the law and practice
for the time being relating to civil and criminal procedure respectively, and,
in the absence of any such law by the discretion of the Court.”

2 “138. Order of
examination.–Witnesses shall be first examinedinchief, then (if the adverse
party so desires) crossexamined, then (if the party calling him so desires)
reexamined.

The examination and crossexamination must relate to relevant
facts, but the crossexamination need not be confined to the facts to which the
witness testified in his examinationinchief…”

5. Section 231 of the Cr.P.C.
indicates that the Judge is given the discretion to defer crossexamination of a
witness, until any other witness or witnesses have been examined.

Section 231 is set out hereinbelow:

“231. Evidence for prosecution.–(1) On the date so
fixed, the Judge shall proceed to take all such evidence as maybe produced in
support of the prosecution.

(2) The Judge may, in his discretion, permit the
crossexamination of any witness to be deferred until any other witness or
witnesses have been examined or recall any witness for further
crossexamination.”

(Emphasis supplied)

The phraseology of Section 231(2) mirrors Section 242(3)3 of the Cr.P.C. which
provides for a similar discretion to a Magistrate in the trial of a Warrant
Case under Chapter XIX of the Cr.P.C.

3 “242. Evidence for prosecution.–… …(3) On the date so fixed, the Magistrate shall proceed to take
all such evidence as may be produced in support of the prosecution: Provided
that the Magistrate may permit the crossexamination of any witness to be
deferred until any other witness or witnesses have been examined or recall any
witness for further crossexamination.”

6. Section 242(3) is
analogous to Section 251A(7) of the repealed Code of Criminal Procedure, 1898
and is identically worded. Section 251A was inserted vide the Code of Criminal
Procedure (Amendment) Act, 1955 (Act No. 26 of 1955) in the erstwhile Code of
Criminal Procedure, 1898.

The Statement of Objects and Reasons of the Code of Criminal
Procedure (Amendment) Act, 1955 suggests inter alia that changes were introduced to simplify the procedure in
warrant cases, to ensure speedy disposal of criminal judicial business, to
minimise inconvenience caused to witnesses, and to ensure that adjournments are
not allowed without the examination of witnesses present in court, except for
an unavoidable cause.

The Karnataka High Court in Shamoon Ahmed Sayed & Anr. v. Intelligence Officer, 2009 Cri LJ 1215 : ILR
2008 Karnataka 4378.delivered
by Shantanagoudar, J. (as he then was), had observed that Section 231(2) as
well as Section 242(3) of the Cr.P.C. must be interpreted in light of the
legislative intent behind the enactment of Section 251A of the Code of Criminal
Procedure, 1898.

7. What follows from the
discussion is that the norm in any criminal trial is for the examinationinchief
of witnesses to be carried out first, followed by crossexamination, and
reexamination if required, in accordance with Section 138 of the Indian
Evidence Act, 1872.

Section 231(2) of the Cr.P.C., however, confers a discretion on
the Judge to defer the crossexamination of any witness until any other witness
or witnesses have been examined, or recall any witness for further
crossexamination, in appropriate cases. Judicial discretion has to be exercised
in consonance with the statutory framework and context while being aware of
reasonably foreseeable consequences.5 The
party seeking deferral under Section 231(2) of the Cr.P.C. must give sufficient
reasons to invoke the exercise of discretion by the Judge, and deferral cannot
be asserted as a matter of right.

5 A
Constitution Bench of this Court in Gurbaksh Singh Sibbia & Ors. v. State of Punjab, (1980) 2 SCC 565 had
elucidated upon the nature and manner of exercise of judicial discretion in
paragraph 21. The relevant extract has been reproduced hereunder:

“…Every kind of judicial discretion, whatever may be the nature
of the matter in regard to which it is required to be exercised, has to be used
with due care and caution. In fact, an awareness of the context in which
the discretion is required to be exercised and of the reasonably foreseeable
consequences of its use, is the hall mark of a prudent exercise of judicial
discretion.”

(Emphasis supplied)

Several High Courts have held that the discretion under Section
231(2) of the Cr.P.C. should be exercised only in “exceptional
circumstances”6, or when “a very strong case”7 has been made out.
However, while it is for the parties to decide the order of production and
examination of witnesses in accordance with the statutory scheme, a Judge has
the latitude to exercise discretion under Section 231(2) of the Cr.P.C. if
sufficient reasons are made out for deviating from the norm.

where the ground for
deferral was the mere existence of a relationship between the witnesses10;

10 Sisir Debnath v. State of West Bengal & Anr. [C.R.R. No. 2533 of 2017;
decided on August 2, 2017 by the High Court of Calcutta (Appellate Side)].

where specific reasons
were not given in support of the claim that prejudice would be caused since the
defence strategy would be disclosed11;

11 Pradeep Kumar Kolhe v. State of Madhya Pradesh [M.C.R.C. No. 20240 of 2018; decided on July 11, 2018 by the
High Court of Madhya Pradesh, at Indore]; State of Maharashtra v. Raja Ram Appana Mane
& Ors. [Criminal
Writ Petition No. 578 of 2016 and Criminal Application No. 2485 of 2016;
decided on January 23, 2017 by the High Court of Bombay, at Aurangabad]; Amit Kumar Shaw &
Ors. v. State of West Bengal
& Anr. [C.R.R.
No. 3846 of 2009; decided on June 23, 2010 by the High Court of Calcutta
(Appellate Side)]; Md. Sanjoy & Anr. v. The State of West Bengal, 2000 Cri LJ 608 : 2001 (1) RCR (Criminal) 431.

where no prejudice would
have been caused12.

12 The
High Court of Calcutta in Lalu Alam v. State of West Bengal [Cr. Revision No. 385 of 1996; decided on June 12, 2002 by the
High Court of Calcutta (Appellate Side)] : 2002 (3) CHN 301 had noted:

“…So, the plea, taken by the petitioner in this case that if
Miss. Bannerjee is crossexamined before the examinationinchief of the other
named witnesses on the same point, the prosecution will certainly have an
opportunity to fill up a lacuna, cannot be accepted as a general rule as in
a criminal trial the accused has an additional advantage inasmuch as the copies
of earlier statement of the prosecution witnesses, recorded under Section 161
Cr.P.C. are supplied well in advance so that he can not only know to his advantage what
each prosecution witness is expected to tell while in the witness box but has
also the advantage of crossexamining each and every witness with reference to
their earlier statement made by them during the investigation…In a situation
like this, hardly it can be accepted that if the crossexamination of Ms.
Bannerjee is allowed to be proceeded with before examination of the other
witnesses in this case, the present petitioner would be highly prejudiced and
prosecution will have the opportunity in filling up the lacuna in this case.”

“…In most of the criminal cases, there may be more than one eye witness
and definitely will be more than one mahazar witness. Many cases depend upon
the official witness only, who may have to depose about the similar facts. Thus
the defence may choose to file application invoking Section 231(2) or under
Section 242(3) of Cr.P.C. on the ground of alleged prejudice to be caused in
every matter . But the same cannot be allowed by the Court. As aforementioned,
the defence of the accused will not be prejudiced at all as the examinationinchief
of the witnesses generally will proceed based on either the statement recorded
under Section 161 of Cr.P.C. or based on mahazar, etc.”

(Emphasis supplied)

9. The Delhi High Court, in Vijay Kumar v. State (Govt. of NCT of
Delhi)13, laid down useful
directions for the conduct of criminal trials. The directions are commendable,
and relevant excerpts are reproduced hereinbelow:

13 W.P.
(Crl.) No. 1350 of 2017 and Crl. M.A. No. 7450 of 2017; decided on July 3, 2017
by the High Court of Delhi : 2017 Cri LJ 3875.

“42…(vi). Since the expectation of law is that the trial, once
it commences, would continue from daytoday till it is concluded, it is
desirable that, keeping in mind the possible time required for recording of
evidence (particularly of the prosecution), a detailed schedule of the dates of
hearing on which evidence would be recorded is drawn up immediately after
charge is framed – this, taking into account not only the calendar of the court
but also the atime required by the prosecution to muster and secure the
presence of its witnesses as well as the convenience of the defence counsel.
Once such a schedule has been drawn up, all sides would be duty bound to adhere
to it scrupulously.

(vii). While drawing up the schedule of dates for recording of
the evidence for the prosecution, as indicated above, the presiding judge would
take advice from the prosecution as to the order in which it would like to
examine its witnesses, clubbing witnesses pertaining to the same facts or
events together, for the same set of dates.

(viii). If the defence intends to invoke the jurisdiction of the
criminal court to exercise the discretion for deferment of crossexamination of
particular witness(es) in terms of Section 231(2), or Section 242(3) Cr. PC, it
must inform the presiding judge at the stage of setting the schedule so that
the order in which the witnesses are to be called can be appropriately
determined, facilitating short deferment for crossexamination (when necessary)
so that the recording of evidence continues, from daytoday, unhindered avoiding
prolonged adjournments as are often seen to be misused to unduly influence or
intimidate the witnesses.

(ix). It is the bounden
duty of the presiding judge of the criminal court to take appropriate measures,
if the situation so demands, to insulate the witnesses from undue influence or
intimidatory tactics or harassment. If the court has permitted deferment in
terms of Section 231(2), or 242(3) Cr. PC, for crossexamination of a particular
witness, it would not mean that such cross examination is to be indefinitely
postponed or scheduled for too distant a date. The court shall ensure that the
deferred crossexamination is carried out in the then ongoing schedule
immediately after the witness whose examination ahead of such exercise has been
prayed for.”

10. There cannot be a
straitjacket formula providing for the grounds on which judicial discretion
under Section 231(2) of the Cr.P.C. can be exercised. The exercise of
discretion has to take place on a casetocase basis. The guiding principle for a
Judge under Section 231(2) of the Cr.P.C. is to ascertain whether prejudice
would be caused to the party seeking deferral, if the application is dismissed.

11. While deciding an
Application under Section 231(2) of the Cr.P.C., a balance must be struck
between the rights of the accused, and the prerogative of the prosecution to
lead evidence.

The following factors must be kept in consideration:

possibility of undue
influence on witness(es);

possibility of threats to
witness(es);

possibility that
nondeferral would enable subsequent witnesses giving evidence on similar facts
to tailor their testimony to circumvent the defence strategy;

possibility of loss of
memory of the witness(es) whose examinationinchief has been completed;

occurrence of delay in the
trial, and the nonavailability of witnesses, if deferral is allowed, in view of
Section 309(1) of the Cr.P.C.14.

14 “309. Power to
postpone or adjourn proceedings.–(1) In every inquiry or trial the proceedings shall be continued
from daytoday until all the witnesses in attendance have been examined, unless
the Court finds the adjournment of the same beyond the following day to be
necessary for reasons to be recorded…” See also Vinod Kumar v. State of Punjab, (2015) 3 SCC 220; and, Lt. Col. S.J. Chaudhary v. State (Delhi Administration), (1984) 1 SCC 722.

These factors are illustrative for guiding the exercise of
discretion by a Judge under Section 231(2) of the Cr.P.C.

12. The following practice
guidelines should be followed by trial courts in the conduct of a criminal
trial, as far as possible:

i. a detailed casecalendar must be prepared at the commencement
of the trial after framing of charges;

ii. the casecalendar must specify the dates on which the examinationinchief
and crossexamination (if required) of witnesses is to be conducted;

iii. the casecalendar must keep in view the proposed order of
production of witnesses by parties, expected time required for examination of
witnesses, availability of witnesses at the relevant time, and convenience of
both the prosecution as well as the defence, as far as possible;

iv. testimony of witnesses deposing on the same subjectmatter
must be proximately scheduled;

v. the request for deferral under Section 231(2) of the Cr.P.C.
must be preferably made before the preparation of the casecalendar;

vi. the grant for request of deferral must be premised on
sufficient reasons justifying the deferral of crossexamination of each witness,
or set of witnesses;

vii. while granting a request for deferral of crossexamination
of any witness, the trial courts must specify a proximate date for the
crossexamination of that witness, after the examinationinchief of such
witness(es) as has been prayed for;

viii. the casecalendar, prepared in accordance with the above
guidelines, must be followed strictly, unless departure from the same becomes
absolutely necessary; ix. in cases where trial courts have granted a request
for deferral, necessary steps must be taken to safeguard witnesses from being
subjected to undue influence, harassment or intimidation.

13. In the present case, a
bald assertion was made by the Counsel for the RespondentAccused No. 2 that the
defence of the RespondentAccused No. 2 would be prejudiced if the
crossexamination of CWs 1 to 5 is not deferred until after the
examinationinchief of CWs 2 to 5.

The impugned Order is liable to be set aside since the High
Court has given no reasons for reversal of the Order of the Additional Sessions
Judge, particularly in light of the possibility of undue influence and
intimidation of witness(es) since the RespondentAccused No. 2 and Accused No. 7
are “highly influential
political leaders”.

14. In view of the aforesaid
discussion, the present Criminal Appeal is allowed, and the impugned Order
dated January 9, 2018 passed by the High Court of Kerala in Criminal
Miscellaneous Case No. 171 of 2018 is set aside. The Order dated December 20,
2017 passed by the Additional Sessions Judge dismissing the Application filed
on behalf of the RespondentAccused No. 2 stands restored. The observations made
hereinabove will, however, have no bearing on the merits of the case during the
course of trial.